HILL v. REPUBLIC OF IRAQ

December 5, 2001

MEL J. HILL, ET AL. PLAINTIFFS,V.REPUBLIC OF IRAQ, ET AL. DEFENDANTS.

The opinion of the court was delivered by: Jackson, District Judge.

DECISION AND ORDER

In the summer of 1990 military ground forces of the Republic
of Iraq crossed its border with Kuwait, invested the capital of
Kuwait City, and seized control of the country with the
objective of annexing it to Iraq. Kuwait's resistance was
minimal, and within hours Kuwait was an occupied country.

In conjunction with its invasion of Kuwait, Iraq quarantined
all foreign nationals then present within the borders of the two
countries, denying them visas to depart. When international
opposition to the invasion developed to the point at which
military action against Iraq appeared likely, Iraq declared that
the foreign nationals would be detained indefinitely "so long as
Iraq remains threatened by an aggressive war." The detainees
were promptly characterized as hostages — "innocent people,
citizens of many nations, held against their will in return for
concessions" — by the President of the United States who
announced that Iraq would be held responsible for "the safety
and well-being" of those who were Americans.*fn1

The U.S. Department of State estimated at the time that there
were approximately 30,000 foreigners of all nationalities
confined within the borders of Iraq and Kuwait, of whom 2500
were Americans. Their captivity began August 2, 1990, the day of
the Iraqi invasion of Kuwait. It ended mid-December, 1990, when
the last were allowed to depart. In the interim they survived,
day-to-day, under conditions of greater or lesser adversity,
none of which were, however, conducive to their safety and
well-being.

I.

This action was commenced by approximately a score of United
States citizens (or their personal representatives) who were
detained against their will in Kuwait and Iraq between August
and December, 1990. They sue the Republic of Iraq and its
President, Saddam Hussein, for money damages for hostage-taking,
false imprisonment, personal injury, intentional infliction of
emotional distress, and in some cases assault, battery, and loss
of consortium. The action is brought pursuant to certain 1996
amendments to the Foreign Sovereign Immunities Act,
28 U.S.C. § 1602-1611 ("FSIA") allowing such actions to be brought for the
first time by private citizens against foreign sovereign nations
and their agents and instrumentalities.

Subject matter jurisdiction of this Court derives from
28 U.S.C. § 1330(b) and 1605(a)(7) and venue in the District of
Columbia is provided for by 28 U.S.C. § 1391(f)(4). The original
complaint was filed on December 15, 1999, and an amended
complaint, adding new plaintiffs, was filed July 19, 2000. Both
were properly served on defendants pursuant to
28 U.S.C. § 1608(a)(4) on April 19, 2000, and October 17, 2000,
respectively.*fn2 The defendants failed to plead or otherwise
defend the action, and the Clerk of Court declared them in
default on January 16, 2001.*fn3 Accordingly, the Court held
an evidentiary hearing on October 9-13, 2001, to be later
supplemented by declarations submitted under oath by
non-testifying plaintiffs, from which the facts set forth below
are found pursuant to Fed.R.Civ.P. 52(a) upon evidence
satisfactory to the Court.*fn4

All of them, to varying degrees, were subject to privations
and hardships, and forced at gunpoint to remain where they were
placed or transported. They were obliged to forage for
sustenance or were maintained by their captors on minimal
rations of often spoiled foodstuffs. They were deprived of
sanitary facilities, changes of clothing, and medical supplies.
Even drinking water was in short supply, as was shelter from
desert heat or cold. Some were forced to inhabit impossibly
congested and vermin-infested sleeping quarters. And they were
all kept in constant fear throughout for their lives, acutely
conscious of the indeterminate duration of their captivity, and
the unknown fate of family members from whom they were
separated, both in-country and at home.

According to the testimony of former Ambassador Morris D.
Busby, Coordinator for Counterterrorism of the U.S. Department
of State from 1988 to 1991, it was the Iraqi strategy at the
time to use the foreigners in its custody as bargaining
commodities — to extract concessions from the United States and
its coalition allies in exchange for their release, and until
their release to take advantage of their presence to moderate
any military reprisals by the allies.

The accounts given by the several witnesses who gave live
testimony typify the experiences of other plaintiffs whose
evidence was supplied by declaration.*fn5

The "Human Shield" Hostages

Charles Joseph Kolb

In August, 1990, Kolb was a U.S.-born 29-year-old English
teacher employed by the U.S. Department of State to teach
English at the American Cultural Center in Baghdad, Iraq. He had
lived in Baghdad for nearly a year and was at the time engaged
to marry an Iraqi woman. Informed by a friend that foreigners
were being taken into custody on August 2nd, he remained
primarily in seclusion in his residence, contacting no one. On
August 28th he returned to his house after a short foray
outdoors to find Iraqi security police present, and fled to his
office only to find Iraqi authorities there as well. He was
arrested, detained at a hotel for two days, then driven by bus
with about 20 other Westerners who were dropped off at various
places of detention about the city.

Kolb remained at the gas refinery until mid-December when the
last of the hostages were released. (Others of his co-hostages
had left from time to time earlier.) He and three remaining
companions were driven by pickup truck back to Baghdad. He was
detained at a hotel for several days until an exit visa was
arranged for him. He returned to the U.S. via Frankfurt on
December 18th. In the course of his detention he suffered from
chronic diarrhea and lost 25 to 30 pounds.

He never saw his fiancée again, and has abandoned any thought
of ever returning to the Middle East.

Apostolos Eliopoulos

Eliopoulos was born in Athens, Greece in July, 1952, and
became a naturalized U.S. citizen in 1982, as did his wife,
Angela, whom he married in 1976. With a degree in technology
management from the University of Maryland, he became a computer
programmer, worked as such in Saudi Arabia, Bahrain, and Kuwait,
and in June, 1990, began a new job with the Kuwait office of
Arthur Anderson & Co. He was Arthur Anderson's sole
representative in Kuwait, providing consulting services to such
clients as Kuwaiti Airways and the Kuwaiti Department of the
Interior, and had been promised a full partnership in the
company as of September, 1991.

Eliopoulos celebrated his 38th birthday barely a week before
the Iraqi invasion on August 2nd. He and his family — wife, son,
and daughter — had been living in Kuwait for over three years,
and had established their home in a suburb of Kuwait City.

On August 2nd, Angela and the children were away on vacation
in Greece. Eliopoulos was awakened at home by a call from the
U.S. Embassy alerting him to the invasion and instructing him to
stay at home indoors. Two days later he and two companions had
ventured out for supplies when their car was stopped by Iraqi
troops, and they were taken into custody at gunpoint even as the
Iraqis were actually returning the fire of Kuwaiti troops
nearby. (A captured Kuwaiti was executed by a gunshot to the
head in their presence.)

Eliopoulos and his companions were transported by truck to
various official buildings in the city, interrogated along with
other miscellaneous prisoners the Iraqis had rounded up. The
Kuwaiti soldiers among the prisoners were tortured and beaten.

Eventually Eliopoulos and other captives, both Kuwaitis and
Westerners, were transported by lorry to the Kuwait-Iraq border,
held briefly, and then driven with numerous others into Iraq to
concentration camps in the vicinity of Basra. At one point they
had reason to fear their own executions; at another they
witnessed the summary execution of another Kuwaiti soldier. They
were given no water, although the daytime temperature was 120
degrees.

In mid-August they were transported once more to a hotel in
Basra, and after a stay of approximately 10 days, moved yet
again, first to a phosphate plant, then to a hydroelectric power
station some 200 kilometers north of Baghdad, and ultimately to
a urea plant. At each destination the hostages were quartered,
in sub-civilized conditions, in the midst of the industrial
facilities they knew were likely military targets.

Eliopoulos remained at the urea plant for three months. The
first week in December he was driven to a hotel in Baghdad where
he was met by his wife, and a few days later flown to Frankfurt,
Germany.

In March, 1991, Eliopoulos journeyed back to Kuwait with some
thought of resuming his life there. He found his house in ruins,
and looted, his possessions gone. He was emotionally unable to
resume his work in ...

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